Dr. Mrs. Gouri Jilani vs The Chancellor
2021 Latest Caselaw 609 Jhar

                                     1

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           W.P.(S) No.4188 of 2013
                                         -------

        Dr. Mrs. Gouri Jilani                        ...     ...      Petitioner
                                         Versus
        1.     The    Chancellor,    Ranchi        University,   Ranchi,      Raj
               Bhawan, Ranchi.

2. Ranchi University through its Vice-Chancellor / Registrar, Ranchi University, Ranchi.

3. The Director, H.R.D., Department, Higher Education, Govt. of Jharkhand, Ranchi.

4. The State of Jharkhand. ... ... Respondents

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        CORAM        : HON'BLE MR. JUSTICE DEEPAK ROSHAN
                                         -------
        For the Petitioner          :Mr. A. K. Sahani, Adv.
        For the Res.State           : Mr. Raunak Sahay, Adv.
        For the University          : Mr. A. K. Mehta, Adv.
                                         -------
06/09.02.2021

Heard learned counsel for the parties through

V.C.

2. The instant writ application has been preferred

by the petitioner praying therein for absorption /

regularization of the service of the petitioner in University

service under Statute B.S.U.-25 /85-283-GS(1), dated

29.01.1986 w.e.f. 11.08.1980 with all admissible benefits

and arrears thereof.

3. The brief facts of the case is that the petitioner

was duly appointed as lecturer in the department of

English in the prescribed scale of Rs.700-1600/- with

admissible allowances vide letter no.SC / Appointment /

154(E) /80 dated 10.08.1980 and accordingly the petitioner

joined on 11.08.1980 on the said sanctioned post.

Subsequently, in the same year Sindri College was

converted into a constituent unit of Ranchi University,

Ranchi and with this petitioner's service merged in the

University service. Thereafter, the petitioner was

transferred from Sindri College, Sindri to Marwari College,

Ranchi vide memo No.B/3362-75 dated 06.07.1985.

Thereafter, petitioner joined Marwari College, Ranchi as a

lecturer, Department of English and the petitioner

continuously worked without any break till her retirement

on 31.08.2017. In the meantime, petitioner has completed

two orientation courses in 1994 and 1998 and got Ph.D

degree from Ranchi University in 1999. Thereafter, she

again attended one refresher course in 2002. She also

served as Hostel Superintendent, P.G. Girls Hostel from

02.01.1991 to 1995.

The further case of the petitioner is that a

Statute, being Statute of 1986, known as 'Statute for

regularization of services of temporary Lecturers who were

appointed on or before 28.02.1982, was approved by the

Hon'ble Chancellor of Ranchi University on 29.01.1986

and, thereafter, Screening Committee was constituted by

Ranchi University for regularization of teachers for the

newly taken-over Constituent Colleges. However,

unfortunately, the candidature of the Petitioner was not

placed before the Screening Committee with relevant

documents and details. However, the services of other

similarly situated persons with that of the Petitioner were

regularized and absorbed pursuant to the Statute of 1986.

The further case of the petitioner is that the

Petitioner was regularly performing her duties of Lecturer

at Marwari College, which has become a Constituent

College of Ranchi University, and was regularly paid her

salary in the pay scale, which was 4th revised U.G.C. pay-

scale, of Rs. 2000-4000/-. Thereafter vide memo

No.B/6717 dated 21.04.2001, and Vide memo

No.B/310/09 dated 18.04.2009, respondent University

requested the authority like Secretary HRD, Department,

Govt. of Jharkhand and OSD (J) Governor Secretariat,

Jharkhand for nomination of Government Member in the

Screening Committee and expediting the matter of

absorption / regularization of the services of left out

temporary teachers due to procedural delay. During that

period, the Chancellor Secretariat Vide D.O Letter No.

495/PSG dated 17.04.2001 and No.G.S/1576/12 dated

02.05.2012 also took certain steps for nomination of Govt.

Member to the Screening Committee and convening of the

meeting of the said Committee for absorption

/regularization of the temporary teachers.

4. Mr. A. K. Sahani, learned counsel for the

petitioner submits that the issue involved in the instant

writ application is no longer res integra and has already

been settled by the decision of the Hon'ble Apex Court in

the case of State of Bihar & Ors. -Vs- Bihar Rajya

M.S.E.S.K.K. Mahasangh & Ors as reported in (2005) 9

SCC 129. In the said case, the Hon'ble Supreme Court was

considering the interpretation of the provisions contained

under Section 4(1)(14) read with Section 35 and Section 57-

A of the Bihar Universities Act, 1976 (as adopted). In the

said decision, the Hon'ble Apex Court has held that in the

matter pertaining to absorption of existing staff appointed

against sanctioned vacant post in affiliated colleges, which

have been taken-over and converted into constituent

Colleges, the respective Universities are entitled to take

decision on their own and the said decision of the

respective Universities is not the subject matter of approval

of the State Government.

Mr. Sahani further submits that recently this

Court, after relying the aforesaid judgment, allowed the writ

application of similarly situated in W.P. (S) No.4173 of

2013.

5. Mr. Raunak Sahay, learned counsel for the

respondent-State fairly submits that the issue has been

decided that the University alone is the competent

authority to regularize the service of the employee of newly

converted constituent colleges.

6. Mr. A. K. Mehta, learned counsel for the

University submits that Ranchi University has not taken

any reverse stand and as such did not file any counter

affidavit.

7. Having heard learned counsel for the parties and

after going through the facts stated in the instant writ

application and the judgments referred to herein above, it

appears that the issue raised in the instant writ application

has already been settled, inasmuch as, the University alone

is the competent authority to confirm / regularize the

service of the employee of newly converted constituent

colleges.

8. The Hon'ble Apex Court, in the case of Bihar

Rajya M.S.E.S.K.K. Mahasangh & Ors., (supra), while

interpreting the provisions of Section 4(1)(14) read with

Section 35 and Section 57-A of the Bihar Universities Act,

1976 (as adopted) has held as under:-

"54. The two non-obstante clauses with slightly different wordings have thus to be harmoniously construed so as to fulfill the object of each one of them. On examination of the scheme of the Act and the relevant provisions, we find that Section 35, requiring prior sanction of the State Government for creation of posts and appointments, applies to all affiliated colleges. Compared with Section 35, Section 4(1)(14) has limited operation at a stage when a university enters into an agreement with the management or Governing Bodies of private institutions affiliated or non-affiliated for taking over its management, assets, liabilities and staff. The effect of non-obstante clause in Section 4(1)(14) is that the matter of absorption of staff of such institution/college proposed to be taken over, would be within the sole power and jurisdiction of the university concerned within whose jurisdiction the affiliated college or institution falls. On the matter of absorption of staff of taken over institutions, Section 35 requiring prior sanction or approval of the State Government for creation of posts and appointment; would not be a constraint on the power of the university. It is different thing that the university in considering absorption of the staff of institution taken over may give due consideration to the legality/regularity or otherwise of a particular appointment but it would not be inhibited by the absence of prior sanction or approval of the State as contemplated in Section 35 of the Act. This is how the two non-obstante clauses have to be harmoniously construed and applied as giving overriding effect to each and restrict their operation within exclusive field assigned to each. In the matter of creation of posts and appointment in affiliated colleges in normal circumstances, requirement of prior, sanction or approval

of the State Government, as contained in Section 35, is not dispensed with because of the contrary provision contained in Section 4(1)(14) and the latter section is restricted in its operation to absorption of staff of a taken over institution by the university.

55. Clause (c) to sub-section (2) of Section 57-A was introduced by Act 3 of 1990 and has no retrospective application to the cases of affiliated colleges taken over as constituent colleges prior to the year 1990. The said clause (c) to sub-section (2) of Section 57-A requires further approval of the Bihar State University (Constituent Colleges) Service Commission before absorbing the services of teachers of the affiliated colleges converted into constituent colleges. The aforesaid piece of subsequent legislation amending the same Act can appropriately be taken as an aid to the interpretation of the unamended provisions of the Act. The amended provisions of the Act are an indication that the subject of absorption of staff of taken over affiliated colleges is treated as a subject distinct from regular recruitment to the posts in affiliated colleges which is to be made with prior sanction or approval of the State Government as provided in Section 35 of the Act. Similarly, sub-section (3) added to Section 35 by Act 17 of 1993 is also prospective in application and has no adverse effect on the absorption of the services of the teaching staff of the affiliated colleges taken over as constituent colleges prior to 1993. Sub- section (3) applies to normal mode of recruitment of staff (teaching or non-teaching) of affiliated colleges and is merely reiteration of the legal position that appointments and promotions made contrary to the provisions of the Act, statutes, rules and regulations would be invalid and liable to be terminated at any time. It also provides that any expenditure incurred by the university against such illegal, irregular, unauthorized appointments/promotions shall be realized from the officers found responsible for committing such illegality as a public demand under the provisions of the Public Demands Recovery Act, 1914. Clause (c) of Section 57-A(2) introduced in the year 1990 and sub section (3) of Section 35 introduced in the year 1993 being prospective in operation have no application to the affiliated colleges taken over as constituent colleges with the existing staff prior to the year 1990. Those provisions introduced subsequently in the year 1990 and 1993 are being referred to for a limited purpose to show that the legislature has always treated differently the normal recruitment which has to be made with the approval of the State Government to teaching and non-teaching posts in affiliated colleges and the matter of absorption of existing staff appointed against sanctioned or non-sanctioned posts in the affiliated colleges taken over and converted as constituent colleges.

56. The two non-obstante clauses, although slightly differently worded, one in proviso to Section 4(1)(14) and the other in Section 35 of the Act have thus been construed harmoniously. Our conclusion is that they operate in two different fields--former to consideration of absorption of staff of taken over colleges and the latter to affiliated colleges when they are not under any proposal of being taken over by the university. The two provisions being intended to operate in two different situations and fields, both have an overriding effect on each other. That is why the legislature has employed a non-obstante clause in each."

9. In the backdrop of the decision of the Hon'ble

Supreme Court, it clearly transpires that it is the University

alone which is competent to confirm/regularize the services

of the employees of the newly converted constituent colleges

and the facts of this case clearly shows that vide memo

No.B/6717 dated 21.04.2001, and Vide memo

No.B/310/09 dated 18.04.2009, respondent University

requested the authority like Secretary HRD, Department,

Govt. of Jharkhand and OSD (J) Governor Secretariat,

Jharkhand for nomination of Government Member in the

Screening Committee and expediting the matter of

absorption / regularization of the services of left out

temporary teachers due to procedural delay. During that

period, the Chancellor Secretariat Vide D.O Letter No.

495/PSG dated 17.04.2001 and No.G.S/1576/12 dated

02.05.2012 also took certain steps for nomination of Govt.

Member to the Screening Committee and convening of the

meeting of the said Committee for absorption

/regularization of the temporary teachers.

It is also an admitted fact that the Petitioner had

been duly discharging her services on the post of Lecturer in

the Department of English and, in fact, after serving for

almost 37 years, the Petitioner has already superannuated

from service on 31.08.2017. It is also an undisputed fact that

the Petitioner all along has been paid her salary, but in the

unrevised pay-scale and the benefit of revision of pay-scale

pursuant to 5th, 6th and 7th UGC revised pay-scale has not

been extended to the Petitioner. The said benefit has not been

extended to the Petitioner on the pretext that services of the

Petitioner were not regularized.

10. In view of the cumulative facts and

circumstances mentioned hereinabove, the respondent

University; who is alone competent to confirm/regularize

the services of the employees of the newly converted

constituent colleges and it has already decided to confirm /

regularize the services of this petitioner, inasmuch as, twice

it has requested the authority of the State including OSD

(J) Governor Secretariat, Jharkhand for nomination of

Government Member in the Screening Committee and

expediting the matter of absorption / regularization of the

services of left out temporary teachers due to procedural

delay, shall pass a formal order of regularization of this writ

petitioner and accordingly the benefit of revision of pay-

scale in 5th, 6th and 7th U.G.C. revised pay-scale be

extended to the Petitioner. If the Petitioner is found entitled

for payment of arrear salary with effect from 11.08.1980 till

the date of retirement as per the revised pay-scale, which

has been implemented from time to time in the State of

Jharkhand, the same shall also be extended in her favour.

Since the Petitioner had already superannuated

from service with effect from 31.08.2017, the petitioner is

further entitled for computation of her post retiral benefits

on the basis of the revised pay-scale which would be

applicable on the date of her retirement and, accordingly,

all post retiral benefits be disbursed to the Petitioner after

revising her pay-scale.

11. The Respondent-Ranchi University is directed to

send appropriate requisition to the State of Jharkhand for

grant of approval for release of salary in the revised pay-

scale to the Petitioner and, consequently, the State of

Jharkhand is directed to approve the revised pay-scale to

the Petitioner and provide appropriate fund to Respondent-

Ranchi University for payment of arrear of salary to the

Petitioner in the revised pay-scale including payment of

post retiral benefit to the Petitioner as per revised U.G.C.

pay-scale.

12. It is made clear that the entire exercise shall be

completed within a period of four months from the date of

receipt/production of copy of this order.

13. With the aforesaid directions, the instant writ

application stands allowed and disposed of.

(Deepak Roshan, J.) Fahim/-